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The 50th Anniversary of Kent: The decision that sparked the transformation of juvenile defense

You never get used to the feeling. You're there, standing beside your young client at a waiver hearing. His future is resting in the hands of the Judge, who must decide whether treatment in the juvenile system is possible, or if this child will be tried as an adult. As his lawyer, you've spent months getting to know this young person and family, his strengths and fears. You've reviewed medical records, school records, court records, psychological evaluations, treatment plans, trauma assessments—anything you can find that might convince the Judge that despite these serious charges, this child before the court deserves a chance at rehabilitation.
You never get used to the feeling. You're there, standing beside your young client at a waiver hearing. His future is resting in the hands of the Judge, who must decide whether treatment in the juvenile system is possible, or if this child will be tried as an adult. As his lawyer, you've spent months getting to know this young person and family, his strengths and fears. You've reviewed medical records, school records, court records, psychological evaluations, treatment plans, trauma assessments—anything you can find that might convince the Judge that despite these serious charges, this child before the court deserves a chance at rehabilitation.

Today, marks the 50th anniversary of the United States' Supreme Court's landmark decision in Kent v. United States (1966), foreshadowing 1967's In re Gault, the seminal case concerning children's due process rights in juvenile proceedings.

Compared to Gerald Gault's prank phone call, Kent is a much more difficult case: a child already on probation, serious offenses with multiple victims, mental illness as a contributing factor, and severe adult sentences (rape was punishable by death). Writing for the majority, Justice Abe Fortas, three years after his success representing Clarence Gideon in Gideon v. Wainwright, underlined the importance of procedural protections for juveniles facing trial as adults.

In Tennessee, judicial wavier is the sole mechanism for children to be tried as adults; juvenile representation necessarily includes transfer hearings for children facing serious charges or children who are close to 18. These transfer hearings are particularly important in Shelby County, where the high number of children facing transfer drew the attention of a 2012 DOJ investigation. Since then, the number of juveniles transferred to adult court has dropped dramatically.

Jurisdiction for children charged with delinquent acts/criminal offenses has enormous consequences: punishment instead of rehabilitation, the disabilities that accompany a felony conviction and adult mandatory minimums. For juveniles charged with serious offenses, jurisdiction presents two extremes: the opportunity to have a future or the condemnation of a life and death in prison. Right now, there is a national conversation taking place involving raising the age of juvenile court jurisdiction and restricting juveniles tried in adult courts.

But this discussion began 50 years ago with a child named Morris A. Kent, Jr. In 1961, 16-year-old Morris Kent was charged with housebreaking, robbery, and rape. Interrogated over the course of two days without counsel present, he gave detailed confessions. By the second day, his mother hired an attorney, who immediately filed motions requesting access to the juvenile court's files and challenging the court's intent to transfer jurisdiction to adult court.

A psychological evaluation indicted that Morris was suffering from mental illness, and his lawyer argued that with psychological care, the teen could be rehabilitated. The juvenile court denied these motions and promptly waived jurisdiction with no hearing and no written findings of fact. Morris challenged the waiver again in adult court, but this motion was also denied; he was found guilty on the housebreaking and robbery charges, and sentenced to 30 to 90 years in prison (he was acquitted on two rape counts by reason of insanity). He appealed the jurisdictional waiver all the way to the U.S. Supreme Court, which found the jurisdictional waiver wholly inadequate.

Justice Fortas wrote, “the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.”

Under the statute that granted original jurisdiction to the juvenile court, Morris Kent was entitled to a presumption of treatment as a juvenile. To overcome that presumption, a child is entitled to a hearing, effective assistance of counsel, and a statement of the reasons and facts for waiver. The hearing must “satisfy the basic requirements of due process and fairness,” and the Kent court included a list of factors that should be considered in waiver proceedings.

Fortas wrote, “Meaningful review requires that the reviewing court should review.” The court “may not ‘assume' that there are adequate reasons.” The Kent court included factors that are incorporated into many state statutory schemes: age, juvenile record, social history, alleged offenses, and opportunities for rehabilitation.
Effective assistance of counsel requires a full hearing and the ability to challenge the records and reports the court relies upon: “The right to representation by counsel is not a formality. It is not a grudging gesture to a ritualistic requirement. It is of the essence of justice.”

The principles forcefully articulated in Kent still resonate 50 years later. Kent does not make judgments about when waiver is proper, but the court forcefully establishes that children facing trial as adults need procedural protections—effective counsel, access to and the ability to challenge court documents, and findings as to why waiver is proper.

What happened to Morris Kent? He was 21 at the time of the Supreme Court's decision (and outside of the juvenile court's jurisdiction), so his case was remanded to the district court for a de novo waiver hearing. The district court found the original waiver to be appropriate and proper, so he appealed again to the U.S. Court of Appeals, D.C. Circuit. The court found that waiver was improper, including the district court's reasoning that he was mentally ill and, therefore, could not be rehabilitated in the juvenile system. The appellate court vacated his criminal convictions.

Morris Kent was eventually released from St. Elizabeth's Mental Hospital, where he had been confined for much of his court proceedings. He married and had children and worked at a printing company. A thorough search of Kent's life following his release shows no further contact with the criminal justice system.  


As defenders, Kent supports us when we fight to keep our clients in juvenile court, to give them the opportunity to demonstrate that they are children, who will grow and change -- not ‘career offenders,' ‘felons,' or ‘predators.' Kent reminds us to remind the court that it must not assume, that it must carefully consider the entire case—and the entire child—before it. And Kent gives us hope that we can demonstrate to the court that even children charged with serious offenses deserve a fair hearing and an opportunity to grow into adults outside of prison walls.

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NAPD News

July 1, 2018: General Registration opens for the “WE THE DEFENDERS” TRAINING CONFERENCE,  November 26-29, 2018, Indianapolis, IN

Due to overwhelming demand, NAPD will again offer this comprehensive Investigator and Social Worker/Sentencing Advocate training experience! The program will include one track for Investigators and a separate track for Social Worker/Sentencing Advocates.  Hear from nationally recognized experts who will share their knowledge on a wide range of topics relevant to the work you do each and every day.  Network with other criminal defense practitioners from around the country and find your tribe. Registration closes Septemebr 3.
This one of a kind conference is developed through surveys of the registrants.   You have a say in what sessions are offered and will have multiple options during the conference.
Click here to watch as the schedule develops based on your suggestions.
Click here to see the faculty list. 
Click here to register for the Investigator Conference Track.
Click here to register for the Social Worker/Sentencing Advocate Conference Track.
Click here to make a hotel reservation at the Indianapolis Marriott Downtown.

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January 23, 2018: In response to US Attorney General Jeff Session's reversal of prior policy on the imposition of fines and fees for criminal defendants, NAPD submitted the following letter on behalf of the public defender community. You can read the letter HERE
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January 17, 2018: The 2018 NAPD Investigators Conference and 2018 Social Workers & Sentencing Advocates Institute (March 26-29, 2018 in Denver, CO) are now at full capacity and closed for registration. A wait list is being developed.
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November 28, 2017: NAPD has uploaded videos of the presentations from the 2017 NAPD Workloads Conference in St. Louis (held November 17-18). Members can access these valuable presentations on MyGideon by logging into their NAPD account.
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